A few months ago the Cuban government publicly released the text of a draconian new decree that targets the country’s artistic community. Called “Decree 349,” the legislation is scheduled to go into effect in December of this year. Cuban-American artist and writer Coco Fusco, in an article published on the website of the nonprofit North American Congress on Latin America (NACLA), explains the terrible impact the decree will have on Cuban artists:
The decree outlines a series of restrictions and punitive measures to be imposed on artists, filmmakers, musicians, performers, and writers who operate without authorization from the Cultural Ministry, as well as for proprietors that offer venue space to artists who seek to present their work without this permission. Decree #349 has generated an outpouring of protests from arts professionals inside and outside the island. On August 24, Amnesty International issued a statement of concern about the arbitrary detentions of artists engaged in protests against the decree in Cuba. Such widespread protests in the artistic community have not been seen since the “Email War” of 2007, when scores of Cuban intellectuals spoke out on the Internet against the reappearance of Luis Pavón Tamayo—a former director of the National Council of Culture and leading Cuban censor—in the Cuban media.
Decree 349 focuses on artistic activities that emanate from Cuba’s growing independent cultural sector. It criminalizes the public presentation and commercialization of art, music, performances, and publications carried out without prior authorization of the Ministry of Culture. It transforms a burgeoning cottage industry of apartment-art galleries—workshops, recording studios, and private clubs all housed in private homes—into sites of potential liability. While much of the language of the decree focuses on the illegality of pornographic, violent, and discriminatory content as well as unacceptable noise levels, the most vague and politically-charged punishable category refers to “contents that are damaging to ethical and cultural values.” That rhetoric comes close to the terms used in the Cuban penal code to describe “social dangerousness” (peligrosidad predilectiva) as behavior that contradicts “socialist morality,” language that has been used to entrap artists that manifest attitudes critical of their government.
Decree 349 will also empower a new cadre of roving state agents to shut down events, confiscate artists’ equipment and property, impose heavy fines, and make arrests if they determine that the cultural activities merit sanction. The decree limits the ways that artists can appeal decisions made against them, leaving them without any access to independent arbiters in the event of a dispute. Fines for infringements start at 1,000 Cuban pesos, which amounts to about $40 USD, or 1.5 months of salary for the average Cuban worker. The greatest risk, however, is that artist’s equipment and even homes can be seized as a punishment. Many of those who are targeted by the decree have struggled for years to secure funds for equipment they use to record or perform, and that equipment is what ensures that they can eek out a decent living in a very fragile economy.
You can read Fusco’s full article here. She has also gathered statements opposing the decree from numerous prominent Cuban artists and intellectuals, which you can read below. (A full English translation of the decree follows the statements.)
To sign a petition and open letter opposing Decree 349, visit Avaaz.org.
Carlos Aguilera, Cuban poet and cultural critic based in Germany. His latest novel is entitled Teoría del alma china (Theory of the Chinese Soul) (2006).
The Cuban constitution had already transformed Cubans in pseudo-citizens many years ago by enacting its “social dangerousness” law that condemns anyone who might commit a crime but who as yet has not committed one. Decree 349 criminalizes a group (artists) that, because of its knowledge and will to speak, represents a danger to that despotic state. These artists not only dare to think aloud but they also dare to show their uniqueness, their difference from that state and its political weakness. A state that, it should be said, is fragile, shown by its need to punish, restrict, censure, forbid, and imprison anyone who goes against it. It is known that a state is most cruel when it feels weak, when it realizes that it has lost its symbolic and political legitimacy.
Carlos Manuel Alvarez, Cuban writer based in Mexico City, editor of El Estornudo.
Someone told me once that in comparison to other regimes, the Cuban government tended to behave less roughly, which is to say that it tries to give an air of legitimacy to its totalitarian measures. Decree 349 should be read in light of this. It is not going to inaugurate a practice that the government had not already imposed, it will only codify what the guiding logic of what the ideologues in charge call “the cultural policy of the Revolution.”
The government is adjusting its internal clock. The economic opening that Cuba has had in the last few years, the reestablishment of diplomatic relations with the United States, the migratory reforms of 2013 that made the borders of the nation more porous—these worked together to reactivate or readjust the cultural milieu in its most distinct expressions. Whether or not they are explicitly political, or openly confrontational, they always carry a dose of subversion and a modicum of autonomy that are viewed unfavorably by the autocratic power structure.
The Cuban government still needs the economic opening, it still needs for its diplomatic relations with the United States not to go down the tubes the way they appear to have done in the last year, and more and more it needs the active participation of the diaspora in the social life of the country. Decree 349 is about taking control of the explosive elements of the moment, to make it inoffensive, to negate its distinct ideology.
It is an intelligent move, since the cultural power structure not only prohibits—it also offers prebends under the table, a practice for which no decrees are needed. In that sense, Decree 349 says less about the nature of the government than about the artistic and intellectual ecosystem in Cuba: it is coherent in its diversity and ultimately characterized by its esthetic cowardice and runaway politics.
Tania Bruguera, artist and founder of INSTAR
Decree 349 is not only a draconian response from the Cuban government to its own fear of art and artists—it also creates problems where there were none.
From the moment in 1961 when Fidel Castro pulled his gun out and put it on the table at a meeting with a groups of artists and intellectuals, before shouting “Inside the Revolution everything, outside of the Revolution nothing” at them, art became a legal matter more so than an aesthetic one. We have seen the censorship and self-censorship those words brought for over five decades but nobody saw that Decree 349 was coming.
Art in Cuba is about to take a Legal Turn. It will be in the hands of inspectors from the Ministry of Culture who will impose fines, take your instruments and equipment, seize your property (from your artist license, your car, to your house or anything they think will constitute the appropriate punishment for your insolence). It is clear that those cultural soldiers won’t understand why they are doing it. They will just be executing an order.
Artists will have no independent legal recourse for an appeal. The state will have the final say as to who is or is not an artist.
I say this as one who has already had an encounter with such “inspectors.” They do not know anything about art from any time period, let alone about contemporary art. They cannot answer when you ask where they got their incorrect information. They have no patience for conversation, they just keep repeating the canned phrases they were asked to deliver and then they issue you a fine of a thousand pesos or more.
I want to thank the Cuban President Miguel Díaz-Canel for unifying artists of all artistic disciplines and political tendencies against the decree 349.
Sandra Ceballos, artist and founding director of Aglutinador Art Space in Havana
The most problematic element of the decree is a phrase in Point G of the decree—i.e., “whoever else who infringes the rules that regulate the normal development of our society regarding culture”—that can be used subjectively by inspectors as a pretext to reproach and impose fines on artists. What is not clear is who is being referred to as “whoever else.”
This law outlines the basis upon which the government determines, in its subjective, arbitrary, and robotic way, what the repressors understand as the interest of the state.
It is a repressive measure that due to its hurtful content demonstrates that the state fears that autonomous Cuban art is gaining ground it terms of concepts and capacities for self-organization. It is increasingly the case that it plays a leadership role in the eyes of international public opinion.
If certain points of this law are not modified, the majority of Cuban artists will be displaced and discriminated against by state institutions and galleries. Some will be expelled from the Registry of Creator and others will not be allowed entry to it, since the jurors that preside over the acceptance process apply criteria that is moralistic and ideological rather than artistic. This is a step backward to the mentality of the 1960s. This decree will generate corruption, bribery among functionaries, specialists and curators (as is usually the case in times of crisis) and nonconformity and discomfort in a sector of society.
Miguel Coyula, Cuban filmmaker based in Havana. His most recent film is the documentary Nadie (2017).
The decree refers to artistic disciplines as if they were services, implying that they are private businesses like any other. That leaves out that we do not live from art; rather, we live for art.
I will speak specifically about film. The aim of this law is to produce audiovisual productions that are bland and complacent both in formal and political terms. That would make it no different from the frivolous Hollywood fare that they have so often criticized. The art that foments thought in a society is the one that shakes up its interlocutor. Without that it stops being art and becomes entertainment, a decorative, escapist mass-cultural object.
With or without this decree I will continue to make independent film. It is not only independent because I finance it from my own pocket, but also because I defend the autonomy of its form and content. It seems that this government does everything possible to increase its unpopularity, and now it does so without the mystical propaganda that its founders once spread.
Let us then be art criminals since laws and rules were meant to be broken. And the international scandals will continue that undermine the little prestige that the regime still enjoys.
Laritza Diversent, Cuban attorney based in the US, director of CUBALEX
The most problematic element of Decree 349 is its capacity to institutionalize prior censorship, which directly affects free creation and artistic expression. Only those artists and artworks that are approved by the state will be able to enjoy such liberties. This law will allow the authorities to exclude polemical works with the argument that they can hurt the public; in doing so they may point to language that may be vulgar but that is also critical of the group in power. They could levy such an accusation against rap music. The kind of legislation that is being proposed at the moment seeks to exert control over a sector of the arts community which since 2017 has formed groups and operated independently (in social and financial terms) in order to promote public debates. They have been repressed more than a few times, because the content of their works is critical of the government.
Henry Eric Hernández, Cuban artist and critic based in Berlin
In 1959, Eric Hobsbawm published Primitive Rebels. In this study, Hobsbawm underscored the mob as the most primitive and pre-political of urban social movements. He also notes that it is very difficult to analyze the mob with lucidity. Of course that difficulty is due to the intermittent appearance of the social dissent provoked by precariousness and disenchantment. The mob mobilizes spontaneously: its members are familiar with certain problems that strangle society. That is why the mob tends to be more reformist than revolutionary.
To celebrate Luis Manuel and his friends in their united front against Decree 349 as a mob transforms their reason for being into a point of discussion. Why does the cultural elite discriminate against this mob saying that they are autodidacts, that they lack real bodies of work, or that their work is weak, stigmatizing them by suggesting that they do not merit attention, much less support for their campaign, and also arguing that if they are arrested it is because they deserve it? Why is it that the proponents of art criticism do not want to deal with the actions of this mob, or, more wisely put, why is it that, if so many reflect upon the incorporation of extra-artistic elements in art, they appear incapable of analyzing issues such as civil rights and the repression of artists and intellectuals?
Lillian Guerra, professor of history, University of Florida
Anyone who witnessed the explosion of critical and revisionist expression in scholarship, creative production, and everyday forms of personal or public protest in Cuba after the fall of Soviet-led Communism in 1991 marveled at it. The expansive, collective, and historically engaged precision with which Cubans demanded the right to contest the nature, leadership, and policies of their government was matched only by their disgust with its hypocrisy. Civil society reconstituted itself, but it did not come out of nowhere; it stepped forward from the political shadows, not the grave. While Cuba’s Communist state barred artists, musicians, and writers from producing or exhibiting their work without government vetting since 1961, many daring intellectuals had led citizens to violate the rules of conformity and obedience to a handful of wills with the boldness of their critiques and their daring example.
The art of contesting a state that denied citizens this basic right through art has been the axis of activism in Cuba for nearly thirty years now. Without Soviet handouts and markets, the Cuban Communist Party’s embrace of capitalism allowed that activism to flourish and grow, transforming two generations of citizens. Young Cubans have grown up with less fear, with autonomy, with greater knowledge of their own society and a renewed pride in Cuba’s long repressed founding tradition: the right to denounce leaders’ hypocrisy and demand accountability. By criminalizing the freedom of artists, musicians, writers, and other cultural actors to create, display, exhibit, or sell their work without government approval and authorization, Decree 349 attempts to turn Cuba back from that tradition, back from the very principles of free expression that once made us what we are and once defined what revolution meant in Cuba. Few recent policies better exemplify the Communist state’s fear of their own citizens’ political capacities and right to determine their own thoughts, and consequently, Cuba’s political destiny, than Decree 349. Historically, especially before 1991, the Communist state contended that Cubans voluntarily censored their work and conformed to state agencies’ surveillance, control, and management of its content and display; today, it makes no such pretense: the rules of the Communist Party’s vision of the Revolution have changed. This law has now made censorship a legal, direct, and undeniable policy of the state.
Hamlet Lavastida, Cuban artist based in Havana
I think that the enactment of Decree 349 is irreversible but the negative perception that the citizenry has regarding state institutions is also inevitable. I base my argument on private commentaries that I have heard about the designation of Violations in article 3.1.g and Warning. The Ministry of Culture can apply these notions of what is legal but it will never be viewed as legitimate when it does so. In addition, this has generated a public debate about cultural policy that involves people outside the field of the arts. What is proposed is a cultural and symbolic war that is out of whack with what goes on daily. In this way, the Cuban state is turning itself into a symbolic State, with political and cultural narratives that are also symbolic, and there is nothing more harmful for a State than to exists only in a symbolic sense. With its entrenchment they are making themselves the agents of their own precariousness.
Carlos Martiel, Cuban artist based in the United States
The most problematic aspect of the decree is that it empowers the government to criminalize artists, legalize censorship, and in the old fashioned manner of absolute monarchies, it makes artists serve as examples by compelling them to pay for their heresies (in this case in cash).
At the moment, Cuba is living through a process of transition and reform, but the population is not able to participate actively. This began to be felt more acutely from the moment that Díaz-Canel was named president—who elected him? The people? Things are being done according to his ways without taking into account the rights, the needs, or the vision of the future of Cubans. In light of this situation, the only way that one has a the expressive possibility to participate actively in the process of “reforms” is through criticism and the expressive possibilities of art to construct reality. The government is aware of the reach and the power of art, and knows that sooner or later the artists are going to express their positions from within the realm of art and that they will demand their rights as citizen, which is in fact what is now happening. The intent of Decree 349 is to demonize any critical expression from intellectuals at a time when it is imperative to be critical.
Rafael Rojas, Cuban historian and political commentator based in Mexico City
One of the great limitations of the constitutional process in Cuba is that legislation that is complementary to the Constitution is approved before rather than after the Constitution itself. In other words, the new Constitution will come into being with a series of unchangeable assumptions that subordinate it to the existent power structure and ensure the “irrevocability of socialism.”
Decree 349 is part of that secondary legislation that is avant la lettre. Its function is to transfer the many restrictions on the growth of the independent economic sector implemented since 2016 to the sphere of culture. These restrictions are part of what we call the “Cuban counterreformation,” a reaction from the most intransigent sectors of the state to the increasing autonomy of civil society and the normalization of ties with the United States.
In the realm of culture, the new regulations expand the legal impediments in order to manage alternative spaces that operate independently of the state, and, at the same time, reaffirm censorship and state control of independently produced art works.
What Decree 349 reveals is a phobic attitude toward autonomy, expressed in the form of preventative sanction. The substrate of this legislation is in perfect harmony with all forms of punishment of freedom of expression and association that can be found in the Cuban Penal code. The code, by the way, is a judicial device that also precedes and conditions the new constitution since its repressive axis forms part of what is considered immutable.
DECREE No. 349/2018 (ENGLISH VERSION)
WHEREAS: it is necessary to update the provisions of Decree No. 226
“Personal violations of the regulations governing the provision of artistic services,” of 29 October 1997, and thereby establish the violations with regard to cultural politics, the provision of artistic services and different artistic manifestations, to determine the applicable measures, to define the authority to impose them and the ways to resolve the disagreements that arise.
THEREFORE: The Council of Ministers, in the exercise of the powers that are conferred in subparagraph (k) of article 98 of the Constitution of the Republic of Cuba, hereby decrees the following:
VIOLATIONS OF CULTURAL POLICY REGULATIONS WITH REGARD
TO THE PROVISION OF ARTISTIC SERVICES
ARTICLE 1. Regarding cultural policy and the provision of the full range of artistic services established by the Ministry of Culture, conduct infringing upon the enforceable norms and provisions will be considered a violation of this Decree.
ARTICLE 2.1. In the offering of artistic services, the following conduct shall be considered a violation:
a) he who approves or permits the realization of artistic services or the use of his equipment or facilities or those associated with the authorized commercial activity, without those artistic services having been approved and contracted by the cultural institution that authorizes the provision of said services.
b) he who realizes or permits the payment to an artist or an artist collective, without those services having been contracted by the cultural institution that authorizes the offering of these services;
c) he who as an individual artist or acting on behalf of a collective to which he belongs, offers artistic services without authorization from the entity designated to permit such activity;
d) he who, without authorization from the entity to which the artist or artist collective belongs, acts as a representative of that entity;
e) he who offers artistic services without being authorized to engage in artistic labor by means of an artistic job or occupation.
- The conduct referred to in subparagraphs a), b) and c) is considered to be very serious and those referred to in d) and e) are considered serious.
ARTICLE 3.1. It is consider a violation when a natural or juridical person, in the use of audiovisual media, exhibits content with:
a) the use of patriotic symbols that violates current laws;
d) sexist, vulgar or obscene language;
e) discrimination based on race, gender, sexual orientation, disability or any other prejudice against human dignity;
f) anything detrimental to the development of children and adolescents; and
g) anything that violates the legal provisions that regulate the normal development of our society in cultural matters.
- The conduct outlined in the preceding paragraph is considered to be very serious.
ARTICLE 4.1. Similarly, when a natural or juridical person engages in the following conduct it will be considered a violation:
a) distributes music or carries out artistic presentations that generate violence through sexist, discriminatory, vulgar or obscene language;
b) establishes spaces for the sale of fine art without the required authorization, or without being registered with the Registry of Fine Art and Applied Art Creators;
c) does not use the established contracts for the artistic presentations;
d) does not comply with the required contracts in relation to the regulation of sound levels in the performance of live shows or activities of any other kind;
e) does not comply with rules regarding author’s rights;
f) sells books with content that is prejudicial to ethical and cultural values; and
g) exceeds permitted sound and noise levels or uses electrical and other equipment abusively.
- The violations set out in points a), b), c) and f) of the last section are considered very serious and those outlines in point d), e) and g) are considered serious.
ABOUT THE MEASURES
ARTICLE 5.1. The following measures will be applied in response to committing violations outlined in this Decree:
b. fine; and
c. seizure of instruments, equipment, accessories and other goods.
- Together with the measures imposed for violations committed, the empowered authorities may:
a) immediately suspend the spectacle or projection in question; and
b) propose the cancellation of the authorization to engage in artistic work on a freelance basis.
ARTICLE 6.1. To determine the measure to be imposed, the empowered authority will abide by classifications of conduct outlined in this decree and the impact of each.
If the infraction committed has been classified as serious, the fine imposed will be 1000 Cuban pesos and if the infraction is classified as very serious the fine will be two thousand pesos.
Seizures can take place independently of or together with the imposition of fines, depending on the seriousness of the infraction.
The penalty may be used exceptionally in cases of conduct that, irrespective of their classification in this Decree, the authorities determine that despite the political and cultural impact, even if they have some of the elements described in articles 2 and 4 they may not merit a more severe measure.
ARTICLE 7. The empowered authority that determines a violation and proves additionally that in the period of one year the same person has committed more than one violation as defined by this Decree or that that person has been fined, will consider that person a recidivist and will impose a double fine and classify the violation as very serious.
EMPOWERED AUTHORITIES FOR THE IMPOSITION OF MEASURES
AND THE RESOLUTION OF APPEALS
ARTICLE 8. The authorities empowered to inspect, to be cognizant of the violations represented in this Decree and to impose proper measures are the supervisor-inspectors designated by the corresponding authority of the Ministry of Culture, as well as the inspectors that are approved by the provincial directors of the special municipality of the Isle of Youth of Culture.
ARTICLE 9. The person upon who is imposed one of the measures in this Decree may appeal in writing within ten days of being notified of the measure.
ARTICLE 10.1. The empowered administrative authority for recognizing and resolving appeals is:
a. the Ministry of Culture, for the cases in which the measures are imposed by the supervisor-inspector; and
b. the provincial directors and the director of the special municipality of the Isle of Youth of Culture, when the measure is imposed by an inspector in that area.
- The authority should resolve the appeal within 30 days of receiving it, by means of a Resolution.
The adopted decision cannot bee appealed administratively through any other means.
ARTICLE II. The instruments, equipment, accessories and other goods subject to seizure will remain in the custody of the empowered authorities; once ten days have passed after the resolution of an appeal, if the appeal decision is in favor of the appellant, the seized goods will be returned; if not, the seized goods will be turned over to the corresponding representative responsible for the artistic endeavor. If there is no appeal, the seized goods will be turned over to the aforementioned authority.
RESPONSIBILITIES OF THE SUPERVISOR-INSPECTOR OR INSPECTOR
ARTICLE 12.1. The supervisor-inspector or inspector that suspends a spectacle or an artistic presentation when a violation is proven to have occurred and the circumstances call for intervention, in addition to imposing measures, should make a request to the corresponding institution, the provincial director of culture or the special municipality of the Isle of Youth, that it provide for the definitive suspension of the spectacle or artistic presentation in question.
- If the supervisor-inspector or inspector that requests the suspension of a spectacle or artistic presentation considers that the authorization to engage in such activities on a freelance basis should be nullified, he should write a report about the causes for the proposal of this nullification within 72 hours, and that report should be endorsed by his boss and presented to the appropriate authorities.
ARTICLE 13. In all cases, the applied measures will be made known to the highest authorities of the business entity that the violator has a relationship with. The application of disciplinary measures will also be made known.
FIRST: The Ministry of Culture is authorized to determine complementary provisions needed to comply with the terms of this Decree,
SECOND: Decree No. 226 “Personal contraventions of the regulations on the provision of artistic services”, of 29 October 1997, is hereby repealed.
THIRD: This decree enters into force from one hundred and fifty days after the date of its publication in the Official Gazette of the Republic of Cuba.
PUBLISHED in the Official Gazette of the Republic of Cuba.
STATED in the Palace of the Revolution, in Havana, at 20 days of April of
Miguel DíazCanel Bermúdez
President of the Council of State and Ministers
Image from the Facebook page of Artistas Cubanxs en Contra del Decreto 349.